Raghubir Dayal Missir vs Emperor

Varma, J.—This is an application on behalf of one Raghubar Dayal Missir who has been convicted by a first class Magistrate tinder Section 13(a), Dangerous Drugs Act (2 of 1930), and has been sentenced to rigorous imprisonment for one year and has also been awarded a fine of Rs. 50, in default three months further rigorous imprisonment.

The case for the prosecution was that the officers of the excise department raided the house of the petitioner on 6th September 1939 and recovered from his house 4� anna bhar of crude opium. The report of the chemical examiner shows that this contained 86 per cent, of excisable opium. The case for the defence was that no opium was recovered from the house of the petitioner. Some evidence was led on behalf of the prosecution to show that the petitioner had some lands and jajmanika in the Gwalior State and there was a possibility of his having imported opium from Gwalior, but the learned Judge has come to the conclusion that there is no direct evidence to show that the petitioner did import the drug from Gwalior into British India.

The Courts below have come to the conclusion that the ii anna bhar of opium was found in the house of the petitioner. There is no direct evidence of this opium having been imported from outside British India more especially from Gwalior, but they have relied upon the presumption referred to in Section 32, Dangerous Drugs Act. Section 82 of that Act runs as follows:

In trials under this Act it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chap. III in respect of (a) any dangerous drug. It is not necessary to quote (b), (c) and (d) for the possession of which he fails to account satisfactorily.

Now the offences mentioned in Chap. Ill in respect of any dangerous drug are to be found in Section 13 of the Act, which is as follows:

Whoever, in contravention of Section 7, or any rule made under that section, or any condition of & license granted there under, (a) imports into British India, (b) exports from British India, or (c) tranships any dangerous drug, shall be punished with imprisonment which may extend to two years, or with fine, or with both.

As this section refers back to Section 7 it is just as well to see what Section 7 is Section 7 of the Act says:

No one shall (a) import into British India, (b) export from British India, or (c) tranship any dangerous drug, other than prepared opium, save in accordance with rules made under Sub-section (2) and with the conditions of any license for that purpose which he may be required to obtain under those rules.

Sub-section (2) of this section refers to the rule making power of the Central Government and it is not necessary to quote it in extenso. The argument on behalf of the prosecution amounts to this that because 4� anna bhar of crude opium was found in possession of the petitioner, it should be presumed u/s 32 that he has imported into British India this much of opium illegally. Now, if the fact that this petitioner had imported this amount of opium into-British India were proved then certainly Section 32 would apply and in that case it would be for the petitioner to explain his conduct that his act of importing did not amount t& an offence. But simply because a certain amount of crude opium was found in his possession one cannot infer the fact that this-opium was actually imported.

Our attention has been drawn to the case in Ishwar Chandra Singh v. Emperor (10) Cal. 581 where their Lordships of the Calcutta High Court had to deal with the question of presumption. The accused in that case was convicted u/s 9(f), Opium Act, 1878, for illegal sale of opium. The facts, which were taken to be established before the High Court, were that the petitioner bought some opium on behalf of his master who was a licensed vendor. He had to transport it within two days of his purchase to the shop of his master, where alone it could be sold legally. He did not take it to that place and when asked for an explanation after it was found missing, he said that it had been stolen, a fact which was not accepted by the Courts. There was no evidence of sale, but the lower Courts convicted him relying upon Section 10 of the Act. Section 10, runs as follows:

In prosecutions u/s 9 it shall be presumed, until the contrary is proved, that all opium for which the accused person is unable to account satisfactorily, is opium in respect of which he has committed an offence under this Act.

Their Lordships held that the effect of Sections 9 and 10 was that, when once it was proved that an accused person has dealt with opium in any of the ways described in Section 9, the onus of proving that he had a right so to deal with it is thrown on him by Section 10, but that the commission of an act, which may be an offence, must be proved before the presumption comes into play at all, and therefore the presumption cannot be used to establish the fact. Their Lordships held that the defective evidence of the sale could not be supplemented by the presumption raised by Section 10, and therefore the conviction for illicit sale was bad. I respectfully agree with the principles laid down in the decision.

In the present case, Mr. Hasan Jan argues that from the fact of possession it should be presumed that the petitioner has committed an offence in respect of a dangerous drug. Even if one is prepared to go so far, what is the presumption to be drawn? Going back to Section 13, we find three kinds of offences mentioned in respect of dangerous drugs. One is import into British India; the other export from British India and the third is transshipment Now, each of these presumptions are to be drawn from the mere fact of possession of crude opium as found in this case. If importing crude opium can be inferred, why not export? This illustration shows that something more must be proved in the case before the presumption against the petitioner of his guilt can be drawn. The petitioner may well have got it from a person who has imported it illicitly. The Courts below have very fairly come to the conclusion that except the fact that this amount of crude opium was found in the possession of the petitioner, there is no evidence to show that he actually imported the thing from anywhere else; but they have relied upon the presumption referred to in Section 32 of the Act.

As I have shown before, presumption cannot be substituted for the proof of facts which go to make up an offence, and in this case the fact of importing itself has not been proved and therefore the guilt of the present petitioner cannot be presumed.

Under these circumstances, I would set aside the conviction and sentences passed against the petitioner and order that he be acquitted and that, if he is on bail, his bail bond be cancelled. There were some other minor points with regard to the search and the question of sentence referred to by Mr. Sarjoo Prasad on behalf of the petitioner. But it is unnecessary for me to go into them in view of the order that I have passed.

Harries C. J.

I agree, the fact of import cannot be presumed from mere possession of the dangerous drug. All that Section 32, Dangerous Drugs Act, provides is that if an act of import or export or transhipment or such like is established, an offence will be presumed, unless the petitioner satisfactorily explains his possession of the dangerous drug. Mere import is not an offence. The offence is to import contrary to the provisions of the Act. All that Section 32 amounts to is that all imports, if proved, will be regarded as imports contrary to the Act until the petitioner establishes that he was lawfully entitled to import or to possess the goods so imported.